HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1021 OF 2005
JUDGMENT:
1. The appellant/complainant filed the present appeal questioning the acquittal recorded by the Additional Judicial First class Magistrate (East & North), R.R.District (for short 'the Magistrate') vide judgment in C.C.No.28 of 2002 dated 18.06.2004, acquitting the 1st respondent for the offence under Section 138 of Negotiable Instruments Act.
2. The appellant/complainant filed a private complaint for the offence under Section 138 of the Negotiable Instruments Act against the 1st respondent stating that he had advanced a loan of Rs.50,000/- to meet the family expenses of 1st respondent. When demanded, the 1st respondent issued a cheque for Rs.68,000/- which was towards principal and interest and the said amount was towards discharge of the debt, which is outstanding and liable to be paid by the 1st respondent. The appellant/complainant also filed a pronote in support of the loan being given. The said Ex.P2 when presented for 2 clearance, the same was returned for the reason of 'account closed'.
3. The accused in the trial court had taken a stand that the appellant/complainant who was an Advocate started private chits and the 1st respondent/accused was member of the chit. Appellant having taken the prize amount of the chit, issued pronote and three blank cheques towards collateral security to complainant/appellant. Misusing the said cheques, false complaint was filed. The accused further examined D.W.1 who is an independent witness to state that the appellant/complainant had obtained three cheques and pronote from the accused towards collateral security.
4. The learned Magistrate vide impugned judgment, acquitted the 1st respondent/accused on the following grounds; i) D.W.1 who is an independent witness was in fact signatory to the pronote EXP1 and also for handing over of blank cheques to the appellant/complainant; ii) D.W.1 also stated that the 1st respondent/accused was highest bidder, for which reason, the complainant/appellant obtained blank pronote and three cheques; iii) the said defence of the accused was not seriously opposed; iv) D.W.1 being an 3 independent witness, his evidence cannot be brushed aside;
v) The complainant/appellant failed to discharge his burden that there was any amount was due by the 1st respondent/accused.
5. Learned counsel for the appellant/complainant submits that initial burden which was on P.W.1 was discharged by producing the cheque and also it is an admitted fact that the 1st respondent/accused had collected the chit amount. In the said circumstances, the burden shifts on to the 1st respondent/accused under Section 139 of the Negotiable Instruments Act and the 1st respondent/accused failed to rebut the evidence, for which reason, finding of the trial Court has to be reversed. In support of his contention, he relied on the judgment reported in the case of T.Vasanthakumar v. Vijayakumari1 and argued that under similar circumstances, the Hon'ble Supreme Court had reversed the finding of both the trial Court and High Court and found that once issuance of 1 AIR 2015 Supreme Court 2240 4 cheque and signature are proved, the burden shifts on to the accused to discharge his liability.
6. It is no doubt settled law that once issuance of cheue is admitted, though without filling up the details other than the signature, a presumption can be drawn that it was issued towards debt or liability. In the present case, D.W.1 who is a witness to the pronote was examined to state that the said cheque in question was and two other cheques were given towards security to P.W.1. Further all the installments of the chit were paid. During the course of cross-examination, except suggesting that D.W.1 was deposing false to help the 1st respondent/accused, no other evidence was placed to discredit the evidence of D.W.1.
7. It is not the case of the appellant/complainant that D.W.1 was only introduced to speak in favour of the 1st respondent/accused. The signature of D.W.1 as a witness on the pronote is also not disputed. The Appellant also failed to explain as to how he could collect interest and how the interest component was arrived at.
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8. The trial Court had the opportunity of observing and assessing the witnesses during the course of trial. The finding of the trial Court that the evidence of D.W.1 could be believed to ascertain that no amount was outstanding with P.W.1, cannot be found fault with. Further the appellant/complainant/ P.W.1 did not dispute regarding the running of chits. As seen from the cross-examination, it is not even suggested to D.W.1 that P.W.1 was not undertaking business of chits and the amount of Rs.50,000/- was given to the appellant/complainant by way of hand loan. In the said circumstances, the judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the present case on hand.
6. For the foregoing discussion, the findings of the learned Magistrate cannot be interfered with.
7. Accordingly, the Criminal Appeal is dismissed. Miscellaneous petitions, if any, pending, shall stand closed.
__________________ K.SURENDER, J Date: 08.07.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1021 OF 2005 Date: 08.07.2022.
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